Erwin Church said he was picking up track shoes for his daughter at the Greenville Crossing shopping center one year ago when he became the victim of a hate crime.
While Church sat in his car, Frank Acierno Jr., the son of a wealthy property developer, allegedly approached him.
Church alleges Acierno said, “What are you doing here, n—–? You don’t belong here.”
Acierno allegedly then punched Church in the back of the head, which was witnessed by two individuals.
Church, 49, said he has suffered emotional and physical trauma, including brain injuries and damage to his vision.
He and his attorneys say they are filing a civil lawsuit against Acierno because his case, which was dismissed in July, wasn’t handled appropriately by police or the justice system. After hearing about the civil suit, Delaware Department of Justice officials say they’re reviewing the case.
“Due to this incident, I have been left permanently scarred and emotionally distressed,” Church said.
“Me and my loved ones have suffered this past year without any justice, compassion or remorse. It’s time for the Delaware Department of Justice to work in favor of my family so this tragedy doesn’t happen to anyone else in the future.”
Acierno, who was 56 at the time of the alleged attack, was charged with assault in the third degree — a misdemeanor — but police did not charge him with a hate crime.
The case went to trial, but was dismissed by Judge Carl Danberg because Church didn’t show up to court quickly enough.
Since the defense had postponed trial two times, Church, who was testifying for prosecutors, did not have to automatically attend court that day. Instead, he was ordered to remain on standby for the court to call him in on an as-needed basis.
Church said that he was not given enough notice, and that even though he tried to come testify, the judge dismissed the case before he arrived.
A voicemail provided to WHYY includes someone from the state Department of Justice informing Church that the prosecutors relayed to Judge Danberg they spoke to him on the phone and that he would arrive at court at noon. However, the defense argued Church should have arrived by 11 a.m. (an hour after court had begun) and Danberg agreed.
Church’s attorneys for the new civil lawsuit argue the DOJ could have pursued the case again and rearrested Acierno after the dismissal, but nothing was done.
“This is about wealth, it’s about power, it’s about what those with many resources are able to get away with,” said attorney Chris Johnson.
“If Mr. Acierno was a regular person, he would most likely be in jail right now. But because of who he is and what he means to Delaware he was able to circumvent the justice system, which often traps those who are impoverished,” Johnson said.
Acierno’s father has developed various shopping centers, malls and apartments. A University of Delaware basketball arena is named after him, thanks to his $1 million donation.
WHYY tried to contact Acierno Jr. for comment but did not reach him.
Mat Marshall, a spokesman for the DOJ, said the department believes Church was “treated badly by the court.”
He said a DOJ social worker and Church played phone tag until 10:47 a.m. on the day of the court hearing. At that time, they were able to speak and Church informed them he could arrive at noon — which was relayed to Judge Danberg. The judge said the victim had to arrive at 11 a.m. and dismissed the case.
“The victim was rightfully upset at the court’s decision, and we tried to reach him afterward to discuss a path forward. Had he or his attorneys ever called us back, we would have done what we are now doing: reviewing the case,” Marshall said.
The DOJ became aware of the situation after the media contacted the department for this story, Marshall said. Once the case is reviewed, the department will decide the next path forward, he said.
Church’s attorneys say they want the DOJ to pursue charges of aggravated assault for a hate crime. If it does not, they said, will pursue it on the federal level.
“We will not stop until we get justice for Mr. Church and ensure Mr. Acierno no longer will be allowed to victimize the great citizens of this state,” said attorney Emeka Igwe.